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Thursday, July 11, 2024

The Taliban, the Afghan State and the Rule of Law | The Taliban


The Taliban took over Afghanistan easily and unexpectedly. Now that all foreign troops have withdrawn, the group is faced with an even more arduous task of governing the country. Can it handle it?

The heartbreaking images of Afghans dying while trying to leave the country on a flight, as well as the general anxiety and fear expressed by many Afghans who stayed in the country to friends and the media, show people’s ability to govern the Taliban.

On the other hand, Taliban leaders have always expressed belief that they are capable of this task and touted the organization’s ability to prevent crime and maintain national security. In a recent interview with Turkish channel Habertürk, Taliban official Abdul Kahal Barki said: “We have not committed any crimes.” At the same time, pro-Taliban social media accounts continued to share the alleged thief in the Afghan city. Shots of the surrounding parade, or shots of the robbers trembling with fear after being arrested.

The recent terrible attack at the Kabul airport challenged this claim, but the organization blamed it on the United States and its improper handling of the withdrawal of troops from Afghanistan. The Taliban leadership seems to think they have at least figured out the safe part of governance.

However, I think the Taliban’s understanding of what it means to provide security to a country is flawed. People can only feel safe when they are protected not only from criminals and terrorists, but also from abuse by the state and those in power. The latter kind of guarantee can only be realized when society is ruled by law.

Although the term “rule of law” is widely used, there is no agreement on a single definition. In a broader sense, it can include good governance and human rights protection, but here I will use a more practical definition. If the following conditions are met, society will be bound by the rule of law: first, the law is clear, easily accessible and not traceable; second, all public institutions, including members of the ruling authority, are responsible for the law; third, independent and impartial judges Applicable law.

If Afghans do not know what the law is, and cannot be sure that future laws will not apply to their past actions, they will feel insecure. They will live in constant fear of state-sanctioned violence.

The Taliban has not yet confirmed that the country’s existing laws will continue to be effective or formulate a new legal system. They often make general statements implying that “Islamic law” will become law, but anyone familiar with Fiqh knows that these statements raise more questions than answers.

The Taliban need to clarify the basic rules in the areas that Afghans are most concerned about as soon as possible, in order to stabilize the country and curb the outflow of citizens and capital outflow. Sadly, the opposite seems to be happening. The Taliban have postponed answers to important issues such as women’s rights in Afghanistan until a certain period of uncertainty in the future, when its fighters will receive “training” to deal with women’s issues.

If Afghans cannot be reasonably confident that those in power are bound by the rules of transparency and that violations will have consequences, they cannot feel safe. Now, a person with a gun who looks like a certain way is capable of brutality, insulting, humiliating, and possibly even killing Afghans. Afghan social media is flooded with examples of this.

How to make everyone, including those in power, responsible for the law?

First, achieving this goal requires separation of powers. If the power to make rules, enforce rules, and decide disputes is in the hands of a narrow group, or those responsible for these functions are appointed, controlled, and loyal to a narrow group, then the strong are unlikely to be controlled and held accountable. This means that different national powers should be given to different institutions so that they can maintain a system of checks and balances.

There should also be a certain degree of decentralization to local authorities and the direct participation of the people in politics through elections. Allowing Afghans to elect local and national officials will ensure that power is distributed among different electoral districts. This will provide meaningful restrictions on the state’s rights to its citizens.

In Muslim history, scholars have divided the rule of law. Some people believe that Islam is a perfect example of the rule of law and the separation of powers, because Fiqh is not under the control of the ruler, but was developed by an independent class of Muslim scholars, Ulama. Others believe that Ulama and Muslim rulers often form alliances to protect their own interests: to defend against heresy, to maintain Ulama’s position, and to suppress political dissent in order to maintain the power of the ruling elite.

In the context of Afghanistan, there is little evidence that Ulama can restrict the organization. In the past, the Taliban simply ignored or sometimes targeted Ulama who were not allied with it.

In addition to the separation of powers, proper legal procedures and judicial independence must also be observed. Whenever the country or its representatives make a decision that may have an adverse effect on an individual, due process of law must be followed. This means that there must be a transparent process in which the potentially affected party can question the state’s decision and the actions of the state agent, and have reason to believe that their challenge will be understood by a fair judge as the challenger. The rules are carefully considered.

If the violation is proven, the judge must be able to provide effective remedies and must enforce the judgment against the state or those in power. No one who presides over the case as a judge should have the final decision on major matters. The dissatisfied party must have the right to appeal.

The Islamic Republic of Afghanistan lacks judicial independence in cases of major political significance, because the President of Afghanistan and his close allies have cultivated a selfish constitutional theory that the President, as the head of state, has the power to oversee all three branches of the country, including The judiciary has any remaining powers that are not expressly allocated by the constitution.

In the past, the Taliban did not take institutional measures to protect judges from political influence. After understanding the role of judges in classical law, treating them as an extension of political rule and treating judges as agents of rulers, the Taliban generally do not believe that it is necessary to protect the judiciary and judicial institutions. Individual judges left the ruling power.

The Taliban showed no interest in governance through institutions. It tends to view rule and governance as personal and allegiance requirements to the ruler. Its leadership tends to assume that good governance requires only the right people, who they believe are consistent with their ideology and have their trust.

This is why they staff national institutions almost entirely from within their ranks, because they are not only trying to control the country and improve governance. Insufficient attention to governance institutions.

The only way for the Taliban to govern Afghanistan to persuade those Afghans who want to leave to stay and contribute to the development of Afghanistan is to establish the rule of law, due process, and work to build good institutions.

To make people feel that their lives, property, and honor are protected, it is not enough to punish criminals and terrorists; it is equally important, or even more important, to hold the country and those in power accountable. Power must be constrained by institutional control mechanisms, such as separation of powers, local and national elections, and due process of law.

The views expressed in this article are those of the author and do not necessarily reflect Al Jazeera’s editorial stance.


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